B-59352, AUGUST 8, 1946, 26 COMP. GEN. 102

B-59352: Aug 8, 1946

Additional Materials:

Contact:

TO EMPLOYEES WHO WERE SEPARATED AFTER THE DATE OF APPROVAL ( MAY 24. IS FOR APPLICATION NOT ONLY TO CASES INVOLVING THE RIGHT OF ELECTION UNDER THE ACT OF AUGUST 1. IS CHARGEABLE TO THE 1946 FISCAL YEAR APPROPRIATION AVAILABLE FOR SUCH PAYMENT ON THE DATE OF SEPARATION. PAYMENT IS NOT MADE UNTIL AFTER THE BEGINNING OF THE 1947 FISCAL YEAR. UPON SEPARATION FROM SERVICE IS NOT FOR COMPUTATION ON THE BASIS OF ANY AND ALL COMPENSATION CHANGES OCCURRING IN THE INTERIM BETWEEN THE DATE OF SEPARATION AND THE EXPIRATION OF THE LEAVE PERIOD TO BE CONSIDERED IN DETERMINING THE AMOUNT OF SUCH PAYMENT. ON THE BASIS OF THE EMPLOYEE'S RIGHTS UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THE TIME OF SEPARATION WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE.

B-59352, AUGUST 8, 1946, 26 COMP. GEN. 102

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - RATE AT WHICH PAYABLE THE RULE SET FORTH IN DECISION IN 26 COMP. GEN. 9, RESPECTING THE RATE OF COMPENSATION TO BE USED IN COMPUTING LUMP-SUM PAYMENTS FOR LEAVE UNDER THE ACT OF DECEMBER 21, 1944, TO EMPLOYEES WHO WERE SEPARATED AFTER THE DATE OF APPROVAL ( MAY 24, 1946) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 (EFFECTIVE JULY 1, 1946) AND WHOSE UNUSED ANNUAL LEAVE COVERED A PERIOD EXTENDING BEYOND JUNE 30, 1946, IS FOR APPLICATION NOT ONLY TO CASES INVOLVING THE RIGHT OF ELECTION UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, TO RECEIVE PAYMENT FOR LEAVE UPON ENTERING MILITARY SERVICE BUT, ALSO, TO ALL CASES OF SEPARATION AFTER MAY 24, 1946. IN THE CASE OF AN EMPLOYEE SEPARATED FROM SERVICE IN JUNE, 1946, THE LUMP -SUM LEAVE PAYMENT AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, IS CHARGEABLE TO THE 1946 FISCAL YEAR APPROPRIATION AVAILABLE FOR SUCH PAYMENT ON THE DATE OF SEPARATION, REGARDLESS OF THE FACT THAT A PORTION OF THE PAYMENT FOR LEAVE EXTENDING BEYOND JUNE 30, 1946, MAY BE COMPUTED ON THE INCREASED RATES AUTHORIZED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946, EFFECTIVE JULY 1, 1946, OR THAT, FOR ADMINISTRATIVE REASONS, PAYMENT IS NOT MADE UNTIL AFTER THE BEGINNING OF THE 1947 FISCAL YEAR. THE LUMP-SUM PAYMENT FOR LEAVE AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, UPON SEPARATION FROM SERVICE IS NOT FOR COMPUTATION ON THE BASIS OF ANY AND ALL COMPENSATION CHANGES OCCURRING IN THE INTERIM BETWEEN THE DATE OF SEPARATION AND THE EXPIRATION OF THE LEAVE PERIOD TO BE CONSIDERED IN DETERMINING THE AMOUNT OF SUCH PAYMENT, BUT ON THE BASIS OF THE EMPLOYEE'S RIGHTS UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THE TIME OF SEPARATION WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE. WHILE AN EMPLOYEE WHO WAS SEPARATED AFTER MAY 24, 1946, THE DATE OF APPROVAL OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, EFFECTIVE JULY 1, 1946, IS ENTITLED UNDER THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, TO HAVE THE LUMP SUM REFLECT THE COMPENSATION INCREASES EFFECTED BY THE 1946 ACT FOR THE PORTION OF HIS LEAVE EXTENDING BEYOND JUNE 30, 1946, AN EMPLOYEE WHO WAS SEPARATED PRIOR TO MAY 24, IS NOT ENTITLED TO THE BENEFIT OF SUCH INCREASES EVEN THOUGH HIS UNUSED LEAVE WOULD EXTEND BEYOND JUNE 30, BECAUSE, AT THE TIME OF SEPARATION, THE INCREASES WERE NOT AUTHORIZED BY STATUTE. 26 COMP. GEN. 9, AMPLIFIED. AN ADMINISTRATIVE AGENCY SHOULD NOT TAKE ANY ACTION TO REOPEN OR TO ADJUST CASES WHERE IT IS BELIEVED UNDERPAYMENTS WERE MADE UNDER THE PROVISIONS OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, UPON AN EMPLOYEE'S SEPARATION FROM SERVICE, AND ALL CLAIMS FILED IN AN ADMINISTRATIVE OFFICE RESPECTING SUCH UNDERPAYMENTS SHOULD BE TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT. THE LEAVE PERIOD COVERED BY A LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, NOT BEING ,SERVICE," THE LUMP SUM PAYABLE FOR THE UNUSED LEAVE OF AN EMPLOYEE SEPARATED FROM SERVICE PRIOR TO THE COMPLETION OF THE 12 OR 18 MONTHS OF SERVICE, AS THE CASE MAY BE, NECESSARY TO ENTITLE HIM TO A WITHIN-GRADE ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS FOR COMPUTATION WITHOUT REGARD TO THE ADVANCEMENT TO WHICH THE EMPLOYEE MIGHT HAVE BEEN ENTITLED HAD HE NOT BEEN SEPARATED UNTIL THE EXPIRATION OF HIS LEAVE. 26 COMP. GEN. 9, AMPLIFIED. WHERE, PRIOR TO DATE OF SEPARATION, AN EMPLOYEE HAS COMPLETED THE REQUISITE PERIOD OF ACTUAL SERVICE, AND HAS MET ALL OTHER CONDITIONS, FOR A WITHIN-GRADE ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THE FACT THAT, BECAUSE SUCH ADVANCEMENTS ARE NOT EFFECTIVE UNTIL THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING COMPLETION OF THE REQUIRED PERIOD OF SERVICE, THE ADVANCEMENT WAS NOT ACTUALLY RECEIVED PRIOR TO SEPARATION WOULD NOT PRECLUDE INCLUDING IT IN THE COMPUTATION OF THE LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, FOR LEAVE EXTENDING BEYOND THE BEGINNING OF THE NEXT PAY PERIOD.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, AUGUST 8, 1946:

I HAVE YOUR LETTER OF JULY 16, 1946, REFERENCE A3-5, AS FOLLOWS:

THIS OFFICE REQUESTS ADVICE ON THE APPLICATION OF THE DECISION OF JULY 9, 1946, B-58777, (26 COMP. GEN. 9) DEALING WITH THE LUMP SUM LEAVE LAW:

1. DOES THE DECISION APPLY ONLY TO THOSE CASES INVOLVING THE ACT OF AUGUST 1, 1941 (ELECTION TO RECEIVE PAYMENT FOR LEAVE ON GOING INTO THE MILITARY SERVICE) OR DOES IT APPLY AS WELL TO ANY SEPARATION? THIS UNCERTAINTY ARISES FROM THE USE OF THE WORD "ELECT" IN THE SUBMISSION FROM THE SECRETARY OF THE TREASURY. IT HAS BEEN HELD THAT THE LUMP SUM LAW ALLOWS NO ELECTION IN THE NONMILITARY SEPARATION CASE. CONTRIBUTING TO THE UNCERTAINTY, THERE IS A REFERENCE IN THE LAST PARAGRAPH TO SEVERAL DECISIONS, SOME OF WHICH HAVE NO CONNECTION WITH A MILITARY CASE. THE DECISION THEREFORE MAY HAVE A MORE LIMITED APPLICATION THAN ITS GENERAL WORDS JUSTIFY, PARTICULARLY AS THERE IS NO AFFIRMATIVE STATEMENT THAT IT OVERRULES NUMEROUS PREVIOUS DECISIONS REACHING A CONTRARY CONCLUSION. CLARIFICATION IS REQUESTED.

2. ASSUMING THAT YOUR ANSWER IS THAT THE DECISION APPLIES TO ALL CASES WHETHER MILITARY OR NOT, TO WHAT APPROPRIATION WILL THE LUMP SUM LEAVE BE CHARGED IF THE EMPLOYEE'S LAST ACTIVE DUTY DATE WAS JUNE 14? SHALL THE ACCUMULATED LEAVE BE PAID PROPORTIONATELY FOR THE REMAINDER OF JUNE FROM THE 1946 APPROPRIATION AND THE PART EXTENDING INTO THE FISCAL YEAR 1947 AT THE INCREASED PAY RATES EFFECTIVE JULY 1, 1946 FROM THE APPROPRIATION FOR THE FISCAL YEAR 1947?

3. THE DECISION OF JULY 9 APPEARS TO STRESS THE DATE OF MAY 24, 1946. THE PLAIN LANGUAGE OF THE 1944 STATUTE, WHICH LEADS TO THE CONCLUSION OF THE DECISION, WOULD APPEAR NOT TO REQUIRE THE RESTRICTION OF THE EFFECTIVE DATE OF SEPARATION TO ANY PARTICULAR DATE SO LONG AS IT WAS SUBSEQUENT TO DECEMBER 21, 1944. ON THE CONTRARY, IT PROVIDES THAT THE LUMP SUM PAYMENT SHOULD ,EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE.' CONSEQUENTLY, IT CAN BE ARGUED THAT HE IS ENTITLED TO BENEFITS OF ANY PAY CHANGE DURING THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE. HENCE, A SEPARATION PRIOR TO MAY 24 IN WHICH THE ANNUAL LEAVE CARRIED OVER INTO JULY WOULD INVOLVE PAYMENT FOR THOSE DAYS IN JULY AT THE RATE WHICH BECAME EFFECTIVE JULY 1. IN OTHER WORDS, IF, DURING THE EXTENDED LEAVE, THE PAY RATES WERE INCREASED, THE EMPLOYEE SHOULD BENEFIT JUST AS HE SHOULD SUFFER IF THE RATES WERE REDUCED. THIS PRINCIPLE WAS FOLLOWED PRIOR TO THE LUMP SUM LEAVE LAW AND IT IS BELIEVED THE HISTORY OF THE LEGISLATION, AS WELL AS THE QUOTED PORTION OF THE STATUTE, CONTEMPLATES SUCH AN APPLICATION. YOUR DECISION ON THIS POINT IS REQUESTED.

4. IF THE ANSWER TO THE FOREGOING QUESTION PERMITS THE DISREGARDING OF THE DATE OF MAY 24, 1946, HOW FAR BACK MAY THE CHANGED PROCEDURE BE APPLIED--- BEYOND JULY 1, 1945 WHEN A DIFFERENT PAY PROCEDURE WAS ESTABLISHED?

5. WHAT STEPS ARE TO BE TAKEN BY THE DEPARTMENT IN CASES WHICH HAVE ALREADY BEEN ACTED UPON PRIOR TO THE ISSUANCE OF YOUR DECISION OF JULY 9? DO WE REOPEN THE CASES AND ADMINISTRATIVELY EFFECT ADJUSTMENTS? TO WHAT PAST DATE MAY THE DEPARTMENT TAKE SUCH CORRECTIVE STEPS? IF THE DEPARTMENT IS NOT AUTHORIZED TO REOPEN THE CASES, MAY THE FORMER EMPLOYEES FILE CLAIMS WITH THE DEPARTMENT FOR DIFFERENCES FOR SETTLEMENT IN THE DEPARTMENT OR SHOULD THEY BE SUBMITTED DIRECT TO THE GENERAL ACCOUNTING OFFICE?

6. THE REASONING OF THE DECISION OF JULY 9 JUSTIFIES A REOPENING OF THE QUESTION AS TO WHETHER THE EMPLOYEE IS ENTITLED TO THE BENEFITS OF ANY WITHIN GRADE PROMOTION DURING THE PERIOD OF THE EXTENDED LEAVE IN SETTLEMENT FOR THE LUMP SUM LEAVE. IT WOULD SEEM FROM THE HISTORY OF THE LEGISLATION THAT THE EMPLOYEE IS ENTITLED TO SAME, THE MAJOR PURPOSE OF THE LAW BEING TO RELIEVE THE PAY ROLLS FROM CARRYING HIS NAME INDEFINITELY UNTIL THE EXPIRATION OF THE LEAVE. AS LEAVE IS SYNONYMOUS WITH SERVICE AND AS THE STATUTE CONTEMPLATES A LUMP SUM PAYMENT TO EQUAL "THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE," IT SEEMS INESCAPABLE THAT HE IS ENTITLED BY LAW TO ALL THE INCIDENTS AND BENEFITS WHICH WOULD HAVE ACCRUED TO HIM HAD HE NOT LEFT THE SERVICE UNTIL HIS LEAVE EXPIRED. YOUR DECISION IS REQUESTED AS TO WHETHER IN COMPUTING THE LUMP SUM PAYMENT IN CONFORMANCE WITH YOUR RULING OF JULY 9 AND ANSWER TO THIS SUBMISSION, WE SHOULD ALLOW CREDIT FOR PERIODIC WITHIN GRADE PROMOTIONS OCCURRING DURING THE PERIOD OF EXTENDED LEAVE.

7. IF YOUR ANSWER ALLOWS PERIODIC WITHIN GRADE PROMOTIONS DURING THE LUMP SUM LEAVE PERIOD, TO WHAT EXTENT AND OVER WHAT PERIOD MAY THE DEPARTMENT CORRECT, RETROACTIVELY, ANY SUCH CASES WHICH HAVE BEEN SETTLED ON A DIFFERENT BASIS?

IN THE DECISION OF JULY 9, 1946, B-58777, 26 COMP. GEN. 9, REFERRED TO IN YOUR LETTER, THERE WAS CONSIDERED THE QUESTION PRESENTED BY THE SECRETARY OF THE TREASURY, AS FOLLOWS:

ADVICE IS REQUESTED WHETHER AN EMPLOYEE OF THE DEPARTMENT NOW ON LEAVE WITHOUT PAY OR IN A PAY STATUS WHO ELECTS, ON OR BEFORE JUNE 30, 1946, TO BE PAID IN A LUMP SUM UNDER SAID ACT (ACT OF DECEMBER 21, 1944, 58 STAT. 845) IS ENTITLED TO COMPENSATION WITH RESPECT TO ANY UNEXPIRED PERIOD OF SERVICE ON AND AFTER JULY 1, 1946, AT THE RATE PROVIDED FOR IN THE FEDERAL EMPLOYEES' PAY ACT OF 1946 ( PUBLIC LAW 390, 79TH CONGRESS) OR MUST BE PAID AT THE RATE IN EFFECT AT THE DATE OF SEPARATION.

IN ANSWER THERETO, IT WAS HELD, QUOTING THE SYLLABUS:

IN CONSONANCE WITH THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, PROVIDING THAT THE LUMP SUM SHALL EQUAL THE COMPENSATION THAT WOULD HAVE BEEN RECEIVED HAD THE EMPLOYEE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS LEAVE, THE LUMP SUM PAYABLE TO EMPLOYEES WHO WERE SEPARATED AFTER THE DATE OF APPROVAL ( MAY 24, 1946) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 (EFFECTIVE JULY 1, 1946) INCREASING BASIC RATES OF COMPENSATION, AND WHOSE UNUSED ANNUAL LEAVE COVERS A PERIOD EXTENDING BEYOND JUNE 30, 1946, PROPERLY SHOULD REFLECT THE COMPENSATION CHANGES EFFECTED BY THE 1946 ACT FOR SO MUCH OF THE PERIOD AS EXTENDS BEYOND JUNE 30, 1946. COMPARE 24 COMP. GEN. 728; ID. 768; 25 ID. 185.

THE USE OF THE WORD "ELECTS" IN THE SUBMISSION FROM THE SECRETARY OF THE TREASURY WAS NOT OVERLOOKED. HOWEVER, NO PARTICULAR SIGNIFICANCE WAS ATTACHED THERETO FOR THE REASON THAT IT WAS UNDERSTOOD THE CIRCUMSTANCES ATTENDING THE SEPARATION OF THE EMPLOYEES UNDER CONSIDERATION INVOLVED NO RIGHT OF ELECTION UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED, 56 STAT. 200. FURTHER, EVEN IF SUCH HAD BEEN THE CASE, THERE IS PERCEIVED NO BASIS FOR THE APPLICATION OF A RULE DIFFERENT FROM THAT STATED IN THE SAID DECISION OF JULY 9, 1946, IN COMPUTING THE LUMP-SUM PAYMENT IN CASES NOT INVOLVING THE RIGHT OF ELECTION UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED. ACCORDINGLY, IN ANSWER TO QUESTION 1, YOU ARE ADVISED THAT THE RULE STATED IN THE DECISION OF JULY 9, 1946, IS FOR APPLICATION IN COMPUTING THE LUMP-SUM PAYMENT IN ALL CASES OF SEPARATION AFTER MAY 24, 1946--- THE DATE OF APPROVAL OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 216.

THE RIGHT TO THE LUMP-SUM PAYMENT AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, ACCRUES TO AN EMPLOYEE AT THE TIME OF HIS SEPARATION FROM THE SERVICE. HENCE, THE FISCAL YEAR APPROPRIATION AVAILABLE FOR PAYMENT OF THE LUMP SUM UPON THE DATE OF SEPARATION FROM THE SERVICE IS THE ONLY APPROPRIATION WHICH PROPERLY MAY BE CHARGED WITH SUCH PAYMENT, REGARDLESS OF THE FACT THAT THE PERIOD TO BE USED IN DETERMINING THE AMOUNT OF THE PAYMENT EXTENDS INTO THE NEXT FISCAL YEAR, OR THAT, FOR ADMINISTRATIVE REASONS, PAYMENT IS NOT MADE UNTIL AFTER THE BEGINNING OF THE NEXT FISCAL YEAR. SEE 24 COMP. GEN. 578, 583. QUESTION 2 IS ANSWERED ACCORDINGLY.

AS STATED IN ANSWER TO QUESTION 2, ABOVE, THE RIGHT OF AN EMPLOYEE TO THE LUMP-SUM LEAVE PAYMENT VESTS AT THE TIME OF HIS SEPARATION FROM THE SERVICE; AND THE 1944 STATUTE CONTEMPLATES PAYMENT THEREOF AS OF THAT TIME. HENCE, IF, AS SUGGESTED IN YOUR LETTER, THE LANGUAGE OF THE STATUTE RESPECTING THE AMOUNT OF THE LUMP SUM BE VIEWED AS PERMITTING ANY AND ALL COMPENSATION CHANGES OCCURRING IN THE INTERIM BETWEEN THE DATE OF SEPARATION AND THE EXPIRATION OF THE PERIOD TO BE CONSIDERED IN DETERMINING THE AMOUNT OF THE LUMP-SUM PAYMENT IT WILL BE SEEN THAT, CONTRARY TO THE PLAIN INTENT OF THE STATUTE, AN EMPLOYEE WOULD HAVE NO VESTED RIGHT TO A SUM CERTAIN AT THE TIME OF SEPARATION FROM THE SERVICE.

THERE HAS BEEN FOUND NOTHING IN THE LANGUAGE OF THE STATUTE OR IN ITS LEGISLATIVE HISTORY FROM WHICH IT REASONABLY MIGHT BE INFERRED THE CONGRESS INTENDED THAT THE AMOUNT OF THE LUMP-SUM PAYMENT IS DEPENDENT UPON CONTINGENCIES WHICH MIGHT ARISE AFTER THE DATE OF SEPARATION FROM THE SERVICE. RATHER, IN ORDER TO GIVE THE FULLEST EFFECT POSSIBLE TO THE PROVISION OF THE STATUTE QUOTED IN QUESTION 3, ABOVE, RESPECTING THE AMOUNT OF THE LUMP-SUM PAYMENT--- CONSISTENT WITH THE REQUIREMENT THAT SUCH PAYMENT BE MADE AT THE TIME OF SEPARATION FROM THE SERVICE--- IT REASONABLY APPEARS THAT THE LUMP SUM IS TO BE COMPUTED ON THE BASIS OF THE EMPLOYEE'S RIGHTS AT THE TIME OF SEPARATION UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THAT TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED, IN ANSWER TO QUESTION 3, THAT AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE AFTER MAY 24, 1946--- THE DATE OF APPROVAL OF THE FEDERAL EMPLOYEES PAY ACT OF 1946--- BUT PRIOR TO JULY 1, 1946, THE EFFECTIVE DATE OF THAT ACT, WOULD BE ENTITLED TO THE BENEFITS OF THE INCREASED RATES PROVIDED THEREIN FOR ANY PORTION OF THE LEAVE PERIOD EXTENDING BEYOND JUNE 30, 1946, SINCE SUCH RATES ACTUALLY WERE PRESCRIBED BY A STATUTE EXISTING AT THE TIME OF SEPARATION ALTHOUGH THEY WERE NOT EFFECTIVE UNTIL A LATER DATE. HOWEVER, AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE PRIOR TO MAY 24, 1946, WOULD NOT BE ENTITLED TO THE BENEFIT OF SUCH INCREASED RATES EVEN THOUGH HIS UNUSED LEAVE WOULD EXTEND BEYOND JULY 1, 1946, BECAUSE, AT THE TIME OF SEPARATION, SUCH RATES WERE NOT AUTHORIZED BY STATUTE.

IN VIEW OF THE ANSWER TO QUESTION 3, NO ANSWER TO QUESTION 4 IS NECESSARY.

WITH RESPECT TO THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE IN CASES OF UNDERPAYMENTS, IT WAS STATED IN DECISION OF JULY 4, 1944, 24 COMP. GEN. 9, AS FOLLOWS:

WHERE COMPENSATION IS NOT PAID CURRENTLY TO AN EMPLOYEE, OR WHERE HE IS UNDERPAID AND SUCH UNDERPAYMENT IS NOT DISCOVERED UNTIL SOME TIME LATER, THERE IS NO REQUIREMENT ON THE PART OF THE ADMINISTRATIVE OFFICE TO MAKE SUCH PAYMENT TO THE EMPLOYEE OR TO ENCOURAGE THE FILING OF A CLAIM THEREFOR. SEE 23 COMP. GEN. 398 (PARTICULARLY ANSWERS TO QUESTION 3, AT PAGE 401); ALSO 23 ID. 721 (PARTICULARLY ANSWERS TO CIRCUMSTANCES 2 AND 5, AT PAGE 723).

HENCE, YOU ARE ADVISED IN ANSWER TO QUESTION 5, THAT NO ACTION SHOULD BE TAKEN BY YOUR DEPARTMENT TO REOPEN OR TO ADJUST CASES WHERE IT IS BELIEVED UNDERPAYMENTS WERE MADE UNDER THE PROVISIONS OF THE LUMP SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, AND THAT ALL CLAIMS FILED IN YOUR OFFICE RESPECTING SUCH UNDERPAYMENTS SHOULD BE TRANSMITTED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, AUTHORIZES WITHIN-GRADE PROMOTIONS, IF EMPLOYEES OTHERWISE ARE ENTITLED THERETO, AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF "EACH TWELVE MONTHS OF SERVICE" OR "EACH EIGHTEEN MONTHS OF SERVICE," DEPENDING UPON THE GRADE HELD. IT IS SETTLED THAT THE PERIOD COVERED BY THE LUMP-SUM PAYMENT IS NOT "SERVICE.' CONSEQUENTLY, AN EMPLOYEE WHO IS SEPARATED FROM THE SERVICE PRIOR TO THE COMPLETION OF THE 12 OR 18 MONTHS OF "SERVICE," AS THE CASE MAY BE, CLEARLY HAS NOT MET THE REQUIREMENTS OF THE STATUTE AUTHORIZING WITHIN GRADE ADVANCEMENTS AND THEREFORE, AT THE DATE OF SEPARATION--- WHEN HIS RIGHTS IN THE MATTER BECOME FIXED--- HE IS NOT ENTITLED TO THE WITHIN GRADE SALARY ADVANCEMENT. ACCORDINGLY, IN LINE WITH THE REASONS STATED IN ANSWER TO QUESTION 3, SUPRA, THE LUMP SUM IN SUCH CASE IS REQUIRED TO BE COMPUTED WITHOUT REGARD TO THE WITHIN-GRADE SALARY ADVANCEMENT WHICH MIGHT HAVE BEEN PAYABLE HAD THE EMPLOYEE NOT BEEN SEPARATED. OF COURSE, WHERE, PRIOR TO THE DATE OF SEPARATION, AN EMPLOYEE HAS COMPLETED THE REQUISITE PERIOD OF ACTUAL SERVICE AND ALL OTHER CONDITIONS OF THE STATUTE AND APPLICABLE REGULATIONS HAVE BEEN MET, THE MERE FACT THAT BY REASON OF THE PROVISION IN SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, SUPRA, POSTPONING THE EFFECTIVE DATE OF THE WITHIN-GRADE SALARY ADVANCEMENT UNTIL "THE BEGINNING OF THE NEXT PAY PERIOD" FOLLOWING THE COMPLETION OF SUCH PERIOD OF SERVICE, HE DID NOT ACTUALLY RECEIVE THE ADVANCE PRIOR TO THE SEPARATION WOULD NOT PRECLUDE INCLUDING IT IN THE COMPUTATION OF THE LUMP SUM. IN OTHER WORDS, WHERE AN EMPLOYEE'S RIGHT TO AN INCREASE IN COMPENSATION HAD BECOME COMPLETELY VESTED AT THE DATE OF SEPARATION, IT IS IMMATERIAL THAT SUCH INCREASE IS EFFECTIVE AS OF A LATER DATE. QUESTION 6 IS ANSWERED ACCORDINGLY. IN VIEW OF THE ANSWER TO QUESTION 5, NO ANSWER TO QUESTION 7 APPEARS NECESSARY.

Mar 19, 2018

AMAR Health IT, LLCWe dismiss the protest because our Office does not have jurisdiction to entertain protests of task orders issued under civilian agency multiple-award, indefinite-delivery, indefinite-quantity (IDIQ) contracts that are valued at less than $10 million.

Mar 13, 2018

Interoperability ClearinghouseWe dismiss the protest because the protester, a not-for-profit entity, is not an interested party to challenge this sole-source award to an Alaska Native Corporation under the Small Business Administration's (SBA) 8(a) program.